I wrote this descriptive, generalized paper while I was in prison at PeWee Valley (KCIW), for a night Biology class, offered through the college JCTC. While I have a degree in Biology, it had been 30 years since I had taken an introductory course, so I enrolled in this class on “canteen scholarship.” It was taught by a Kentucky Department of Transportation worker who was in charge of managing the side of the roads. This is a huge job. The strips bordering the roads can mean the difference between life and death for travelers, because vines such as the pernicious kudzu can block views. Also, the instructor spoke at length about the multi-million dollar cleanup effort that Kentucky faced, after the ice storm. After his work during the day, the instructor continued in God’s work by donating his teaching to the college and to the prison inmates. It was one of the most delightful classes I have ever taken.

Unfortunately, the prison eliminated education to nonviolent Class D offenders and, in the interest of money, shipped these inmates back into the jails, where there was no hope of college education or treatment of any kind.

Because of my unusually long eight year sentence, I was not transferred with the other Class D inmates. This placed me into a Class C sort of category, and I “grandfathered in” to continue my schooling. I am thankful.

This paper is edited for this site, and I would like to hat tip my nephew Ray, who lives and works in Vail. He was a volunteer in the effort to control the epidemic, and he helped me with some articles, because I had no internet access in the prison. Ray, thank you.

The Mountain Pine Beetle (MPB), Dendroctonus ponderosae Hopkins, is an insect of the largest animal Order, Order Coleoptera (beetles). Its life cycle consists of four complete metamorphic stages: egg, larva, pupa and adult. The life cycle lasts about a year, and is completed almost entirely under the bark of host evergreen trees that include ponderosa, sugar and whitepines (major), as well as limber, coulter, foxtail, whitebark, pinyon, bristlecone and Scotch pine.

The MPB larvae are parasitic herbivores with biting and chewing mouthparts; most tree damage occurs during the 10-month-long larval stage.-snip-White legless larvae feed on the host phloem tissue from August of one year to June of the next year. Fattened larvae then excavate additional cells for the pupa stage, which lasts about a month. Adults then eat and burrow an exit to the surface, whereupon they fly, sometimes as far as six miles, to neighboring tree stands, where the cycle is repeated. During this flight, often helped by winds, females secrete male-attracting pheromones, bringing more beetles and concentrating attack numbers.

The Trees And Their Life Cycle

Pine trees are gymnosperms (meaning that their seeds are not contained in fruit) that evolved long before flowering plants. A pine contains both male and female gametophytes, a tree’s equivalent to sperm and egg. Female pine cones are fertilized by small male cone pollen. An embryo encased in a seed coat develops, and is dispersed by wind or by animals.

Pine trees extract water from the soil and pull it upward, against gravity, in the xylem tissue, through transpiration- a tree’s equivalent to sweating. Photosynthesis in the needles utilizes sunlight to convert CO2 and water into sugar and oxygen. This process utilizes chlorophyll, a green molecule that is similar in structure to animal hemoglobin. Sugar then moves, in solution, from the needles to other tree parts that require energy, by way of the phloem.

Since sap-containing phloem cells contain sugar, they are a good beetle food source. When osmotic water flows into high-sugar-concentrated resin-filled cells and tissues, a balanced hydrostatic gradient is established. In healthy trees, a copious flow of sap can actually “pitch out” a beetle attack, such that the beetles drown in the pitch. The tree must not, however, be in a state of stress in order to mount this important defense.

I am presenting this in parts, because I believe the entire discussion is too lengthy for the internet.

Next: Endemic versus epidemic and conditions that favor epidemic, and the role of fire.

Frog Gravy is a nonfiction incarceration account in Kentucky in 2008 and 2009, in jails and in prison, and is reconstructed from my notes.

Inmate names are changed, except for nicknames that do not reveal identity.

Frog Gravy contains graphic language.

McCracken County Jail, Spring, 2008, Cell 107

After some frantic searching in the cell, Ruthie finds the photograph of her mother, who passed away. She finds it, finally, during a trip to the toilet; she had sat on it, and it was stuck to her ass.

Ruthie wants to know if her mother is in heaven, and if she is, will she be sending a signal to Ruthie, like when the lights in the cell flickered this morning. She asks me. I am not an expert in heaven (In fact these days I think I am more an expert in Hell), but I tell her that I believe in a spiritual realm, and I believe we will see our loved ones when we die.

Tina, who takes a literal view of scripture, says, “She’s just asleep, until He comes to judge. You know, like when you go to sleep and…and that’s where your mother is…And the devil will reign for seven years. And, if you don’t have that number, you won’t be able to buy things, or eat things…”

I hear this, and cannot get the words out of my head: And he shall reign forever and ever…For Ever and Ever, Hallelujah, Hallelujah… and I wonder if it is indeed true that Handel wrote the Messiah in, like forty-five minutes during a manic psychotic break. At any rate, the man is a genius, and even though he writes of God’s reign and not the Satan that will be scanning our computer chips for the mark of the beast to see whether or not we can shop at the WalMart In The Sky, the Messiah is one of the most beautiful pieces of music ever written.

In this cell, in this mixture of madness and sadness that is condensed as though cooked under reflux, I adjust the towel on my head, and continue working on the jailhouse dictionary we are composing. Down the hall, Harry shouts from his isolation cell, “PLEASE! Let me OUT!! Help me! HELPMEhelpmehelpmehelpmehelp.” I am reminded of the acronym GOMER, which means “Get Out Of My Emergency Room,” but if you read House Of God by Samuel Shem, you will know this, of course.

Spork: a jailhouse eating utensil that is a plastic hybrid of fork and spoon.

No-shank pen: a flimsy, short version of the ballpoint that has been rendered useless as a weapon.

Hot on the walk: A very good looking Class D nonviolent male working the hallway, such as the one who, from time to time graces us with a view of his erect penis from the broom closet down the hallway. You have to get on tiptoes and strain a bit to see this, but it’s worth it.

Kentucky taxpayers spend something in the neighborhood of $30,000 per year per non-violent war-on-drugs inmate for us to sit in a cold cell, composing a twisted urban dictionary and gazing at the occasional male specimen of perfection. Kentucky. Fuck yeah.

Christie explains trick writing to me in a bit more detail. Trick writing has afforded her the opportunity to pay restitution to her check-writing victims and obtain canteen supplies that she needs to live, such as shampoo and other hygiene products. I am fascinated, and although I have never trick written myself, I would venture to guess that trick writing alone is a multi-billion dollar industry in this country.

There are a good many men who are interested in contacting and developing correspondence relationships with locked up women. Contrary to popular belief, the men are not always interested in sex, or in sexual letters. They are more interested in having a pen pal. There are many sites on the internet that advertise for prison and jail pen pals. Many relationships are long-lasting, and often, particularly if the female inmate has no viable family ties any more, the pen pals are all she does have. Not infrequently, the pen-pal relationships evolve into long-term relationships and marriages.

Christie’s pen pals come from all over the country: Maine, Oregon, Colorado, New Mexico. A nudist in Indiana (who looks like he came straight out of the movie “Revenge Of The Nerds”, she points out). A marathon runner in Texas. A professor who speaks French and Italian.

We eat lunch: chicken breast, one slice of white bread, carrots, broccoli and vanilla wafers. After lunch I go into the toilet and climb onto the steel sink, and look through the tiny, scratched out slit in the ghosted-out, bullet proof window. There are the dumpsters.

And a bird! Oh my God a bird! What a blessing. I got to see, even if for a fleeting moment, a bird.

And this is the highlight of my day. If God could bring me just one bird to see each day, I will be happier than ever.

Police are searching for an inmate that escaped the Fulton County Detention Center (Ricky’s World) in Hickman, KY. Inmate Joseph Ray Powell is apparently from McCracken County, so he may be headed back that way. He has been missing since Saturday.

First, here’s a clip showing the best opening statement that I have ever seen.

Before we review the remaining exceptions to the hearsay rule, I want to emphasize the difference between the present-sense-impression exception, which is a statement by the declarant reacting to an event as it happens or shortly thereafter, and the excited utterance exception, which is a statement reacting to an event while under the influence of the emotional response caused by the event. For example, let’s return to our cozy couple, Amy and Beauregard, lost as they are in each other’s eyes to the eternal frustration of the waiter and owner of the restaurant, who want to lock-up and go home. Let’s also move the dinner to a month after the accident.

“Yes. Even though he was my boss and kind of nerdy. I’ll never forget his screams. I never heard someone scream like that. It was awful, Beau.”

“How did it happen?”

“Igor Ivarson ran the red light and hit him in the crosswalk and he bled to death right in front of me.” She sobbed and squeezed more tears from her baby blues.

Okay, is her statement admissible under the present-sense-impression exception?

No, because her statement describes an event that occurred a month earlier.

Is her statement admissible as an excited utterance?

Yes, because she was under the emotional influence of the event.

Note that this exception has been used to introduce the statements of sexual assault crime victims, particularly children under the age of 5, even though they were being questioned by adults, social workers, or police using leading questions, and even though the child never testified at the defendant’s trial. This is an especially difficult situation for prosecutors, defense attorneys, and judges, not to mention the children and the defendants. Young children are particularly susceptible to forming false memories regarding incidents that never happened when authority figures question them with leading questions, e.g., “Is that when your daddy touched you in your private place?”

Now, beginning with the third exception, since we already have discussed the first two, let’s move on to the other hearsay exceptions in which the availability of the declarant is immaterial:

3. Statement about a then existing mental, emotional, or physical condition;

4. Statements to medical personnel for purposes of medical diagnosis (Yes, what you tell your doctor about a preexisting medical condition is admissible under this exception to the hearsay rule in a legal proceeding between you and your insurance company to determine whether coverage was properly denied);

5. Statements that were recorded to preserve recollection at a time when the declarant had knowledge of the event described, but has now forgotten (this exception happens more and more now, given how many years can pass between an incident and when a legal proceeding regarding that incident finally happens);

6. Records of regularly conducted business activity that were prepared as part of the business, as opposed to generated for purposes of litigation;

7. Absence of an entry in records kept in (6);

8. Public records and reports;

9. Records of vital statistics;

10. Absence of public record or entry;

11. Records of religious organizations;

12. Marriage, baptismal, and similar certificates;

13. Family records;

14. Records of documents affecting an interest in property;

15. Statements in documents affecting an interest in property;

16. Statements in ancient documents;

17. Market reports and commercial publications;

18. Learned treatises;

19. Reputation concerning personal or family history;

20. Reputation concerning boundaries or general history;

21. Reputation as to character;

22. Judgment as to previous conviction; and

23. Judgment as to personal, family, or general history or boundaries.

There are an additional 6 exceptions to the hearsay rule when the declarant is unavailable to testify and be questioned about the statement:

1. Former testimony, if the party, or predecessor in legal interest, against whom the statement is being offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination;

2. Statement under belief of impending death concerning the cause of circumstances of what the declarant believed to be impending death (e.g., the so-called dying declaration);

3. Statement against interest (i.e., a statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. By the way, regarding the Troy Davis legal case: a statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement);

4. Statement of personal or family history; and

5. Forfeiture by wrongdoing (i.e., a statement offered against a party that has engaged in or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness).

Y’all can look up these rules on line for further information. Once again, the rules are FRE 801 defining hearsay, FRE 802 which says hearsay is not admissible except under these rules, FRE 803 which list 23 exceptions where hearsay is admissible regardless if the declarant is available to testify, and FRE 804, which lists 5 exceptions where hearsay is admissible, if the declarant is not available to testify.

Again, the states apply substantially the same rules in state courts and they follow the same numbering system, which makes it easy to find the corresponding state rule and compare the two.

Finally, never forget that a statement by a declarant that is NOT offered to prove the truth of the matter asserted in the statement is NOT hearsay!

After my release, I continued my compulsive note-taking, but since I was unemployable I could not afford to buy paper, so I dove a dumpster and retrieved a spiral notebook with blank paper it it, and in the side pocket was a beautiful restaurant menu composed by, I assume, a culinary student at the local college. The chef is anonymous, but I would like to hat tip him or her and say that I enjoy the imaginary dinner from time to time in my mind.

At approximately the same time the student was composing his culinary opera, I was having Thanksgiving dinner with Lexie, Olivia and Sarah, in the penitentiary, compliments of the State of Kentucky and Aramark. I have no idea what a timbal is, but let’s say for fun that we had timbals of turkey, with unsalted mashed potatoes resurrected from a storage unit in a foreign country most likely and congealed, pearled gravy that reminded me, oddly, of either ZZ Top or my high school days in the backseat (or was it the front?) of a car. They serve everything with gravy on it, even KoolAid. /s

For the strands of orange zest, I went ahead and ate the entire orange, including the peel, because I had not had a fresh piece of fruit in nearly a year.

It took us quite a while to get to the penitentiary restaurant, where we did not have reservations, because I had to push Olivia in her wheelchair, and Olivia is surprisingly heavy. Olivia is diabetic, and had a stroke while she was in jail. The jail staff claimed she was faking it, and so she laid on the cement in her own drool and urine for like, three days, before she made it to prison. But first, they shackled her and prodded her to an awaiting van, just as they did me for my Hannibal Mammogram, only Olivia, who is eighty years old, is not quite as spry as I am, and so she fell getting into the van and permanently injured her knee.

Olivia has little use of her right side, so she cannot push her chair or bus her tray. She relies on inmates to get to and from appointments and meals, and since she is housed in the same dormitory as I am, which is Ridgeview Dormitory (the farthest dormitory from the dining hall, I might add), I will push her to this wonderful meal of thanks that we share.

Over the river and through the woods to grandmother’s house we go. Past all the inmate chit chat such as, “Oh yeah. She done got sent to cell block for mailing pussy hairs to her boyfriend,” and “…bitch just starts hittin’ me for no reason.” La-la la laaa. Over the river and through…

Olivia has no teeth. Her face droops from the stroke, so it’s a little hard to understand her. She is in prison for forging a prescription for a dying friend, and I ask her what medication it was, and she says, “I think it might have been some red pills.”

I help to push and serve Olivia, and make sure she gets her evening diabetic snack to take back to Ridgeview Dormitory. She is indigent and cannot afford hard candy, so low blood sugar is just a risk she lives with, in prison.

Good grief. It’s Whole Foods on steroids. Here in prison we are on our second course: stuffing. Stuffing and cranberry sauce are the best part of Thanksgiving, and I am truly thankful because we have both. Plus, the stuffing even has flecks. If you mix the cranberry sauce with the orange peel in your mouth, you are as good as in your childhood home, with your mother’s unrivaled cornbread stuffing, made in an iron skillet with bacon grease. And oysters. I could eat a whole skillet of that, and then retire to an afternoon of walking in the woods, followed by watching college football.

Lexie is about my age, and she is mostly deaf, so you have to face her directly to speak with her, so she can read your lips. She seems to have a thyroid disorder that makes the eyes protrude a bit, the name escapes me, but it adds to her overall anxious appearance. Lexie got kicked out of drug court and is serving out a ten year sentence. Her addiction of choice was gambling and not drugs, and her original charge may have been for petty theft, but I am not sure. At any rate, during her drug court days, someone spotted her on the boat. I had no idea why it would matter that she was on a boat to start with, but apparently, in this area, they have river boats that people gamble on, and so someone called in their observation to the police, and her drug court was revoked, and now she is serving more time than she could have ever imagined, and that is, I think, ten years.

Lexie cries all the time, and she becomes so upset that she cannot complete Thanksgiving dinner with us, and so Robin, the inmate that swallowed razor blades upon admission to the prison, accompanies Lexie back to her dorm.

Sarah and I enjoy our desert of pumpkin squares, and I am planning Thanksgiving dinner for my birds as well, so I squirrel away some crumbs for my beautiful little bird troupes, and this will be the highlight of my Thanksgiving. Had I not come here, I would not have these birds to share thanks with.

Sarah killed her brother-in-law in a car accident where she was driving. Her blood analysis showed just about everything but the kitchen sink. Sarah and I will become close friends in prison. She is the one whose father will commit suicide the day after Christmas, but I will not get to spend much time with her because her sentence, three years, is so brief compared to mine.

If you followed the Scott Peterson case in California, you may want to check out this blog site. There are also other articles related to prisons and prison overcrowding.

California inmates may be shifted to county lock up, and 26,000 prison employees may be fired. While this may look good on paper, transfer from prison to county lockup (ie: warehousing) is a disaster for inmates.

Written by Masoninblue and reprinted, full-text, here, with permission. Please also refer to the other two Hearsay articles written by Masoninblue, and also, he will be writing a followup on exceptions to the Hearsay Rule. Masoninblue’s website is http://frederickleatherman.wordpress.com/

Philosophical thought for the day: A rule is not a rule without exceptions, and there are no exceptions, damnit!

Good afternoon class.

Welcome to Hearsay 103.

There are so many exceptions to the hearsay rule that one might almost say the exceptions have swallowed the rule. I will discuss several of them in some detail and merely list the others because they do not come up all that often and they are not difficult to understand. For future reference, you can find them listed in rules 803 and 804 of the Federal Rules of Evidence, which are cited as FRE 803 and FRE 804. By the way, most of the states have adopted the Federal Rules of Evidence with minor changes and they use the same numbering system. Most of the minor changes are due to a state modifying the federal rule in order to retain the rule or a favored part of the rule that the state used to follow. For your information, the rules of evidence were promulgated by the various supreme courts pursuant to their rule making authority under the state constitutions. For the most part, judges and lawyers in all state and federal courts play with the same set of evidentiary rules and that is a good thing.

As I pointed out in our first class regarding the hearsay rule, the rule is designed to exclude unreliable evidence. Why bother? you might ask. The answer is that all of the rules are designed to filter the evidence that jurors get to hear so that they will not place undue emphasis or reliance on evidence that has little weight or importance. Put another way, judges and lawyers do not trust jurors, so they want to censor what they get to consider. The hearsay rule is a good example.

Recall our example in the first class involving the hapless Peter Piper who will never get to pick his fabled peck of pickled peppers due to Igor Ivarson’s storming rampage through the red light slamming Mr. Piper’s immortal soul through the uprights of heaven leaving his fractured mortal coil bereft and alone in a puddle of blood in the crosswalk of life. Ah, yes. T’was a pity, indeed.

So, we had B, let’s give him a name and call him Beauregard, shall we? Okay, and let’s also give A a name and call her Amanda. So, Beauregard is on the witness stand and the prosecutor asks him,

“What if anything did Amanda say to you at dinner about something that happened at the intersection?”

But for the hearsay objection by defense counsel that any reasonably conscious and sentient judge would have sustained because the answer is offered to prove the truth of the matter asserted in the statement, Amanda would have answered,

“Igor Ivarson ran right through the red light and hit Peter Piper in the crosswalk.”

You see, judges and lawyers fear that, if jurors heard the answer, they might place undue emphasis on the un-cross-examined statement of a witness who never actually testified. How can they reasonably and reliably assess Amanda’s credibility by listening to Beauregard drone on about dinner with Amanda?

Enough said.

Now, let’s tweak our fact pattern so that we remove Amanda and Beauregard from their cozy repast at their intimate restaurant and place them together at the intersection with Beauregard talking to his wife on his cell phone while staring at the sky when Igor Ivarson hits the unfortunate Peter Piper. He does not see the accident, but Amanda does. She utters a scream and says, “Oh my God. Igor Ivarson ran the red light and hit Peter Piper in the crosswalk.”

Flash forward to trial again with Beauregard on the stand and the prosecutor now asks,

“When you were standing on the corner of the intersection talking on your cell phone, what, if anything, did you hear Amanda say?”

Assume you are defense counsel and you stand up and say, “Objection, your Honor. The question calls for hearsay.”

What happens?

Well, I’ll tell you what happens.

The judge says: “Objection overruled. You may close your mouth and sit down, counsel.”

Saying, “But Judge. Professor Masoninblue says that’s hearsay because its offered to prove the truth of the matter and besides, we all know that we don’t trust juries, right Judge?” will not help you.

Welcome to the first two and likely most often used exceptions to the hearsay rule: Present Sense Impression and Excited Utterance.

FRE 803(1) defines a Present Sense Impression as follows:

A statement describing or explaining an event or condition made while the declarant was perceiving the event, or condition, or immediately thereafter.

FRE 803(2) defines an Excited Utterance as follows:

A statement relating to a startling event or condition while the declarant was under the stress of excitement caused by the event or condition.

Amanda’s statement is admissible hearsay under both the present sense impression and excited utterance exceptions to the hearsay rule.

Why make an exception for these two types of statements and not the statement during the conversation at dinner?

Because the declarant, Amanda, was “describing or explaining an event or condition while [she] was perceiving the event”, and she was “under the stress of excitement caused by the event.” Her statement was an immediate reaction to the accident. She did not have an opportunity to reflect, reconsider, and possibly change or even forget her statement. For that reason, her statement is regarded as sufficiently accurate and reliable to be admitted into evidence, even if she does not testify and is not subject to cross examination.

In fact the availability of the declarant to testify at a hearing or trial is immaterial to all of the 23 exceptions to the hearsay rule that are listed in FRE 803.

I see that we are at 1000 words, so we have reached the end of today’s class and we’ll have to continue our study of the exceptions to the hearsay rule tomorrow.